The Quantity of Justice : So many vacancies, it’s virtually a judicial jobs program

Speculation about President-elect Bill Clinton’s Cabinet selections and the thousands of other appointments he will make come January may be obscuring an equally pressing task facing the next President. There are now 100 vacant federal judgeships, and many of those seats have grown quite cold in the two years or more that they have been empty.

Currently, there are six vacant district judgeships in California alone--four in the Central District, which includes Los Angeles. All six seats have been empty for two years.

The 100 vacancies, which represent 12% of all 846 life-tenured federal judgeships, may have imposed a burden on the operation of trial and appellate courts. Some cases may have been delayed; certainly some judges are more pressed.

THE PRESIDENT: About five federal judges retire every month, or 60 annually. Yet since he took office, President Bush has moved very slowly indeed in sending nominations to the Senate Judiciary Committee.

Why the delay? Many have argued that the White House imposed a strict ideological “litmus test” on appointees based on such issues as abortion and criminal justice.

The Bush Administration also sought younger jurists so as to influence federal jurisprudence well into the next century. The search for individuals both young and ideologically acceptable often took great time.

As the White House crept along, the Democrat-controlled Judiciary Committee failed to act on the 53 nominations this year that the Administration did make--an all-time high. From early in the Bush Administration, many committee Democrats were reluctant to support the White House’s conservative selections. Their backs stiffened even more last year when the Administration tried unsuccessfully to impose needless rules that would have prevented most senators from seeing the actual FBI reports on each nominee. And once Senate Democrats began to sense a Clinton victory, the confirmation process ground to a virtual halt. The 53 nominations then before the committee died when Congress adjourned.

Clinton must forward his nominations for the federal bench in a timely fashion, and the men and women he chooses must reflect America’s diversity. Overall, less than 11% of Bush appointees were minorities and slightly more than 18% were women, a dismal record considering the large and diverse pool of qualified men and women.

THE CONGRESS: The Judiciary Committee, which votes on each nomination prior to the full Senate vote on confirmation, also must act more expeditiously than it has in recent years.

But despite the need for prompt action, Democrats and Republicans are bracing to do battle with each other over Clinton’s nominees. Former federal appellate judge Robert H. Bork, rejected in 1987 for a seat on the U.S. Supreme Court after a bruising fight, has already begun to raise money for a group that he says will monitor judicial nominees from a conservative perspective. His group will, no doubt, be quite vocal because Clinton promised during the election campaign to select only people “who believe in the Bill of Rights including the constitutional right to privacy and the right to choose” abortion.

Doesn’t this promise constitute a “litmus test” of sorts for prospective nominees? It probably does. Although any such up-or-down standard, whether used by Democrats or Republicans, is discordant with the notion of an independent judiciary, the current salience of the abortion question to American politics has made it naive to believe that the issue will not be raised. It may also now be impossible for any nominee to successfully duck this matter the way Clarence Thomas did last year in hearings on his nomination to the Supreme Court.

Nonetheless, Clinton must move quickly to fill the intolerably high number of court vacancies. And just as important, he must move wisely: He must fill those seats with men and women whose intelligence, compassion and integrity are beyond reproach.